BURIAL OF NON-JEWS IN JEWISH CEMETERY

The question of whether a Gentile wife or children of a mixed marriage may be buried in our cemeteries was answered for the Conference by Dr. Kaufman Kohler in 1914 (and reprinted in the Rabbi’s Manual). The answer, although it is substantially correct, needs some rediscus-sion and development. In recent years we have been getting many more and slightly different inquiries on the matter. For example, may the Christian father of an unconverted Gentile married to a Jew be buried in Jewish cemetery? The status of the Jewish cemetery in the Jewish legal tradition, and the permissibility of burying non-Jews in it, needs a fuller discussion than has been hitherto available to the Conference.

LET us first consider the actual status of the cemetery as a sacred possession and trust of the Jewish community. It becomes clear at once that the cemetery does not have a legal status equal to that of the synagogue or the school. With regard to a synagogue or school, each community is compelled by Jewish law to provide them (see Shulchan Aruch, Orah Hayyim 150:1; Yore Deah 245:4, note of Isserles). “The people of the community ‘compel each other’ (kofin zeh es zeh) to build a synagogue … to establish a school.” There is no such requirement anywhere in the law that a community must have a cemetery. As a matter of fact, while many a small community in Europe had, of course, its own minyan and provided for the instruction of its children, it did not have a cemetery of its own, but transported its dead to some other and larger city. A cemetery is, therefore, not one of the institutions imposed by Jewish law upon each Jewish community.

The reason for this difference in legal status between a cemetery on the one hand and synagogue and school on the other, is perhaps due to historical reasons. In Palestine, where the foundation of the law developed, people were generally buried in privately owned caves, etc., and therefore it remains an ideal in Jewish law that it is better for a man to be buried in his own property (b’soch shelo; b. Baba Bathra, 102a). When, therefore, communal cemeteries developed, mainly in Babylon where the alluvial soil made rock-cave burial impossible, there was no strong basis for requiring each community to have a cemetery. Though, of course, there is discussion about it, as to where it should be located, how far from the city, etc. (M. Baba Bathra II, 9; Shulchan Aruch, Choshen Mishpot 155:23), actually, the Mishnah does not say “cemetery,” but simply, “graves.”

Of course, over the centuries the communal cemetery became a precious possession and sacred trust of the Jewish community, but its sanctity is based primarily on minhag. Since the basic Palestinian experience was individual burial on a man’s own property, we can see why the law is so meticulous about the rights of the individual grave and has no clear statement about the sanctity of the entire cemetery. The law is extremely careful to protect the individual grave. Thus it is asked: May the earth dug out from it be used by the living? May one even have the minor benefit of resting by leaning on the tombstone? May anyone benefit from the trees that draw their sustenance through their roots from the graves? There are scores of discussions on the sanctity of the individual grave, generally summed up in the principle that a grave may not be used for any living person’s benefit. Even broken pieces of a tombstone are osur b’hano ‘oh. But there is no evidence that, for example, the unused quarter of the cemetery is in this sense sacredly and inalienably the possession of the dead. Dr. Kohler is quite right in saying that our cemeteries are not consecrated in their entirety, as are the Catholic cemeteries, but each grave is sacred by itself. Of course, it must be stated that in recent years there have developed ceremonies accompanying the opening of a new cemetery, and the rabbis, chiefly the Hun garian rabbis of the last generation (Moses Schick, Yore Deah 357; Eliezer Deutsch, Peri Hasodeh III, 81; Joseph Schwartz, Ginze Yosef 86) speak of it as a good custom. Mostly the ceremony involves the Chevra Kadisha fasting on that day and thinking thoughts of repentance, primarily in order to avert the evil omen of suddenly providing for a large and new amount of Jewish burials. It is almost like inviting Satan to bring evil (al tijtach pe l’satan). But this penitential fasting by the Chevra Kadisha, which at all events is not a widespread custom, can hardly be considered a formal consecration of a cemetery in its entirety.

Since, therefore, the communal cemetery has no firm rootage in basic Jewish law, but has a strong hold in Jewish custom and affection, the authorities find great difficulty in proving legally that a Jewish cemetery must be exclusively a Jewish cemetery. People feel, of course, that it should be such, but it is hard to prove that the law requires it to be such. Two rabbis of the last century tried valiantly (and rather pathetically) to prove that the cemetery should be only Jewish and sharply separated. One was Eliezer Shapiro of Muncacz (Minchas Eliezer II, 41) and the other was Eliezer Deutsch of Bonyhad (Dudae Ha-Sodeh, 66). Shapiro embarrassingly tried to base the reason for keeping Christian bodies separate from Jewish bodies on the Talmudic dictum: “We do not bury the wicked next to the righteous” (b. Sanhedrin 47a). This analogy has already been used by Joel Sirkes (Bach to Yore Deah 151) who says simply that even a wicked fellow Jew is not buried next to a righteous one; so it certainly is not proper to bury a non-Jew next to a Jew. Eliezer Deutsch tried to base the prohibition on a sort of cabbalistic classification of souls.

In the eighties, there was considerable Halachic discussion of this whole question. A rather original article on the matter was written by Meir Friedmann (Bes Talmud, IV, 3) . He concludes that the burying of non-Jews in the same cemetery as Jews was actually a regular practice in the time of the Mishnah. The line of argument is of interest. Primar-ily it is based upon the Mishnah, Gittin V, 8: “We do not hinder the poor of Gentiles from gleaning the corner of the field,” etc. On this, Mishnah in the Babylonian Talmud (the Boraita in Gittin 61 a) says: “We sustain the poor of non- Jews, comfort their mourners, and bury their dead with the dead of Israel.” The Jerushalmi, in the same chapter {Gittin 47c) adds some significant details as follows: “In a city where there are Gentiles and Jews, we establish Jewish and Gentile officials who will collect for charity from Gentiles and Jews,” and then it continues more or less as in the Talmud, “and we sustain the poor, bury the dead,” etc.

From this Friedmann concludes that there was joint social service. As for the separateness in burial, as implied in the dictum, “We do not bury the righteous by the wicked,” etc., he gives the following explanation: The well-to-do were buried in their own caves, with niches dug in the cave. The prohibition, “We do not bury the wicked,” etc., meant, “We do not bury them together in the same cave,” since it is the same enclosure. But for the poor they also had separate and distinct graves in a cemetery (much like ours) and since each grave was separate with the proper partition, it was there that the cooperative social service authorities buried Jews and Christians, i.e., each in his own grave, but in the same cemetery. Meir Friedmann’s famous colleague, Isaac Hirsch Weiss, agrees with this conclusion and says that Rashi’s restrictive comment (to the Boraita in Gittin 61 a) that “with” does not mean “in the same cemetery,” is an unjustified restriction based upon the presupposition that the Boraita cannot mean what it clearly does mean. It is of interest that Joel Sirkes (to the Tur, Yore Deah 151) says that while Rashi means that Jews and non-Jews should not be buried side by side as a general practice, Rashi ad-mits, according to Sirkes, that if a body of a slain Gentile is found, he may be buried in the same courtyard with Jews.

Friedmann’s article, endorsed by Weiss, evoked a response from an Orthodox scholar, Eliezer (Louis) Hausdorff. He published a booklet on this subject (Responsum with Regard to the Burial of a Non-Jew in the Jewish Cemetery, Leipzig, 1884). He attacks all of Friedmann’s conclusions, yet makes an interesting statement which is of concern to our discussion. He says (and in this he is clearly correct) that the dictum, “We do not bury the righteous by the wicked,” etc., which is used as the basis of the argument against burial of Jews and Gentiles side by side, is not at all a matter of law. It is only a matter of feeling with regard to the dignity of the dead. A community has no right to bury a wicked person next to a departed person of good reputation, inasmuch as we are sure that if the departed worthy person had in his lifetime known that this wicked person would be buried next to him, he would have objected. Therefore, out of respect for all the dead whose sensitiveness in lifetime we may assume, we do not bury such people side by side, who worthy people would have felt, so far as they personally were concerned, should not be at their side. But Hausdorff continues that where the communal cemetery is not involved, this makes no difference. If a man is buried on his own property, he has the right to say that he does not care who is buried by his side; and on his own property, he may bury whom he wishes. There is no actual legal prohibition involved.

So it is clear that even in a vigorous, polemical article by an Orthodox writer, it is difficult to prove legally that we may not bury a Christian near a Jewish grave; but of course, again, Jewish feelings require that the Jewish cemetery should remain Jewish.

This being the state of the law, what are our present day feelings in the matter, and what should our attitude be to this question? Of course it is obvious that it is not a simple matter to speak of “our” feelings. The feelings of a mixed family that wants to have the deceased of their family buried side by side, are not the same as the feelings of other members of the congregation who have not this type of family bond. But, in general, even as a Jewish religious community, we do have a certain moral duty with regard to burial of non-Jewish dead. As the Talmud says (Gittin 61a): “We feed the poor of non-Jews, comfort their mourners, and bury their dead with the Jewish dead ‘for the sake of peace.’ ” Although Rashi (as we have said) immediately explains the word “with” to mean not “in” Jewish cemeteries, but “as” we would bury Jewish dead, at least it is clear that being concerned with their burial when needed, certainly remains a religious duty with us. More than that, the consensus of opinion in Jewish law is that one may say Kaddish for a Gentile relative (see Recent Reform Responsa). Aaron Walkin, rabbi of Pinsk-Karlin, in a responsum written in 1933 (Z’kan Aharon II, 87) says a proselyte may say Kaddish for a Gentile father, and Abraham Zvi Klein, rabbi in Hungary in the past century, in Beerot Avraham 11, says that if a Christian woman gives a gift to the synagogue, there is no prohibition against the Chevra Kadisha recording her name and reciting el mole rachamim for her.

In the light of the above, the practical decisions to which the Conference had come in the past ought to be continued, and somewhat elaborated as follows: If a man owns a lot in our cemetery and he wishes his Gentile spouse or their children buried in his lot, we should not object. Even if one of her parents is to be buried in that lot, we should permit it. The Jewish owner’s lot is to be considered b’soch shelo, his property, and he does not object to his Gentile relative being buried near where he himself will be buried.

The overwhelming number of such requests will come from a mixed family which wants to be buried side by side. But if it is a question of a single grave, not in a family plot, the situation is different. A Jew may object to a Gentile who is a stranger being buried next to his parent or other close relative. Here, then, where there is no family bond between the Jew and the Gentile, we have no right to force the burial of a Christian next to the grave of a Jew (in spite of the argument of Friedmann mentioned above). Therefore, for a single grave (not in a family plot) the cemetery may set aside a small section for such infrequent requests. This section of single graves for Gentile relatives would then be no different from a municipal cemetery (frequent in Europe) in which there is a Jewish section, a Gentile section, side by side.

Since the exclusive Jewishness of the Jewish cemetery is rooted deeply in Jewish sentiment, if not in formal Jewish law, any Christian service held in it awakens protest on the part of our people, as many of us have discovered. Such protests have come from “the most liberal,” who objected to a Christological service conducted near the graves of their parents. The best solution, therefore, is the one that is generally followed. The Christian minister conducts the service in the funeral chapel or the home. The rabbi conducts the service in the Jewish cemetery; since at all events it is our duty to participate, if needed, in the burial of a non-Jew, as stated above. If it is unavoidable that the Christian minister officiate in the Jewish cemetery, then he must either use our Manual or just selections from the Psalms, etc. Certainly no Christian type of tombstone must ever be permitted in a Jewish cemetery.

In essence, it may be said that the point of view consistently followed by the Conference and now developed more fully, is based upon the following considerations: The communal (or congregational) cemetery has an honored status rooted in custom but not in law, except insofar as custom becomes law (minhag yisroel Torah hu). There is a special and older status for a man’s own lot (b’soch shelo). Also, we have a moral obligation to be concerned, when needed, with funerals of non-Jews. Kaddish and el mole rachamim may be said for them, especially when there is a special relationship or situation involved. Close Gentile relatives, therefore, may at the request of the family be buried in the family plot; but as to single graves in a row, the congregation should not, on its own initiative, bury Jews and unrelated Gentiles side by side. Whatever service is conducted by a Christian minister in the home or funeral chapel does not concern us, but the services in the cemetery should always be a Jewish service.

(Originally published in Central Conference of American Rabbis 1968.)